SUPREME COURT OF QUEENSLAND
CITATION: Harith & Kanuth v Beale [2003] QSC 411
PARTIES: PAUL ANTONI HARITH
(First Plaintiff)
and
ELIZABETH GAY KANUTH
(Second Plaintiff)
v
JOHN BEALE
(Defendant)
FILE NO: S55 of 2003 (Mackay)
S163 of 2003 (Rockhampton)
DIVISION: Trial Division
DELIVERED ON: 5 December 2003
DELIVERED AT: Mackay
HEARING DATES: 15-18 September 2003
JUDGE: Dutney J
ORDERS: 1. Judgement for the defendant against the plaintiffs on the counter-claim in the sum of $31,929.03, together with interest of $2,926.83.
2. Declare that the defendant is entitled to a charge over the property Lot 24 on SP 123431 for that amount, ranking second behind the existing mortgage to Howard Mortgage Finance Pty Ltd.
3. The plaintiffs are restrained from granting any security over the property ranking in priority to the defendant’s charge, other than the existing mortgage to Howard Mortgage Finance Pty Ltd, until such time as the amount due to the defendant is paid in full.
4.The defendant is to pay the plaintiff’s costs of an incidental to the action up until 18 September 2003, other than costs reserved on 24 June 2003, 25 July 2003 and 12 September 2003, to be assessed on the standard basis.
5.The plaintiffs to pay the defendant’s costs incurred since 18 September 2003 (if any) to be assessed on the standard basis.
6.No order in relation to the costs reserved on 24 June 2003.
7.The plaintiffs to pay the defendant’s costs thrown away by the adjournment on 25 July 2003 to be assessed on an indemnity basis.
8.Declare that such costs include all legal costs and outlays incurred by the defendant up to and including 12 September 2003, except costs and outlays necessarily incurred for the drafting and filing of pleadings, complying with the defendant’s obligations in relation to disclosure, costs reserved on 24 June 2003, attending mediation other than on 25 July 2003 and the interlocutory hearing in April 2003.
CATCHWORDS: TRUSTS AND TRUSTEES – where defendant purchased property in own name – where moneys contributed by plaintiffs and defendant – where defendant borrowed moneys in own name to complete the transaction as trustee for the plaintiffs – whether defendant entitled to reimbursement for outgoings and time expended – where remuneration over and above outgoings contemplated by the plaintiffs
COSTS – INDEMNITY COSTS – where defendant asserted a beneficial interest in the property until last day of trial – whether plaintiffs entitled to their costs up to the last day of trial – whether plaintiffs entitled to costs on an indemnity basis because of the persistence of the claim for a beneficial interest in the property
COSTS – INDEMNITY COSTS – where June 2003 trial adjourned because plaintiffs unable to fund their legal representation - where solicitors and counsel for plaintiffs and defendant present at Court in Mackay - where defendant was ready to proceed – where defendant could not fund a trial as at September 2003
Trusts Act 1973 (Qld), s 101(1)
Stott v Milne (1884) 25 Ch D 710, cited
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- Harith & Kanuth v Beale [2003] QSC 411
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- [2003] QSC 411
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